Rio Grande Basin Ag Producers workshop recap

Pond on the Garcia Ranch via Rio Grande Headwaters Land Trust

From The Valley Courier (Ruth Heide):

Division of Water Resources State Engineer Dick Wolfe tackled the “use it or lose it” concern during the Rio Grande Basin Ag Producers’ Water Future Workshop in Alamosa on Tuesday.

“People think they have got to divert everything under their water right or they will lose it,” Wolfe said.

He said the important thing to remember is historical consumptive use.

Most water in Colorado is diverted for irrigation, “for beneficial crop use,” he explained. Wolfe was involved in compiling a special report issued in February 2016 by the Colorado Water Institute in an effort to educate people on the “use it or lose it” concept.

The report addresses five main concerns: 1) maintaining conditional water right; 2) administering absolute water right; 3) abandoned water right; 4) changing use of a water right from agriculture to municipal use; and 5) implications of conservation program participation.

Wolfe specifically dealt with the fourth concern, changing the use of a water right, during Tuesday’s conference. He explained that water right changes come under dual administration, both from the state engineer’s office and the water court, which adjudicates the water right.

“Any change of water right can be time consuming and costly,” he said.

A change of water rights case has to consider whether the change will injure existing users or use more water than historically used.

Water rights come with restrictions such as the maximum that can be diverted, flow rate and area of land, Wolfe explained. The historic consumptive use is critical in water use change cases, he added, with the historical consumptive use of a water right often being less than the maximum that was allowed to be diverted under the original decree. Wolfe used a hypothetical example of a water right decreed for 150 cfs (cubic feet per second), but only 100 cfs had historically been used to irrigate the farmland, with only 60 cfs actually consumed by the crop and 40 cfs returning to the river. If the owner of the property wanted to dry up the farmland and sell the water right to a factory, for example, the owner could not transfer the full 150 cfs that was decreed in the water right, Wolfe explained. The owner could only transfer the 60 cfs that was historically consumed on that property. The water that has historically gone down the river must continue to do so.

Wolfe said someone might argue that they should divert their entire decreed right, then, but the crop can only consume so much water, and that consumptive use is what can be transferred.

“The measure of that is still historical consumptive use,” Wolfe said. “It’s limited by the amount the crop can consume.”

The duty of water is also something to consider, Wolfe added. If folks are diverting more water than they need, they could be depriving others and causing unintended impacts to the stream system, he explained.

Colorado water law does not permit wasteful water use, and Wolfe said he would be issuing an order in the next few months giving clear guidance on what wasting water means.

Two Rivers Water Co. is suing farmers under the Welton Ditch

Cucharas Dam via The Pueblo Chieftain

From The FencePost:

For generations, this community under the Welton Ditch has been growing hay, winter wheat, barley, oats, vegetables and livestock, but all of that could soon come to a crashing halt…

Two Rivers Water & Farming Co. (Two Rivers) is suing Welton Water and its shareholders for what they are calling “wasteful and inefficient water use practices.”

In accordance with Welton Water’s senior rights, water is allocated from the Huerfano River in priority; however, satisfaction of those senior water rights, in accordance with Colorado law, means Two Rivers is sometimes precluded from filling its storage reservoirs while Welton Water’s senior rights are unsatisfied. If Two Rivers wins the suit, Welton Water, and its shareholders, will lose its right to divert and use water in accordance with their water rights in certain months of the year and a new precedent will be set for future water rights of Colorado farming and ranching families.

“Two Rivers is suing each of the shareholders individually, and we believe that their game plan is to get us tied up in a legal battle that none of these farmers and ranchers can afford,” said Larry Morgan, Welton Land & Water Co. president. “If we can’t defend ourselves and we lose our water rights, we will all be in serious trouble.”

TENUOUS SITUATION
Welton Water’s senior rights are still junior to the water rights of appropriators who live higher up in the mountains, meaning that very little summer water is available to satisfy the water rights decreed to the Welton Ditch and therefore the shareholders receive very little summer water. Without the winter water, it could prove difficult for Welton Water’s shareholders to run livestock on this land, raise winter wheat or get the ground wet in the springtime for planting.

“We don’t know when we’ll go to court on this; I suppose, it depends on how much paperwork they throw at our attorneys,” Morgan said. “We think they are going to deep-pocket us to death, and without water, we won’t be able to water our cattle or crops, and our land becomes basically worthless.”

John Justus, legal counsel for Welton Water, says he questions the validity of Two Rivers’ claims.

“The litigation was initially triggered by a Colorado State Engineer’s enforcement action seeking enforcement of an unappealed administrative order requiring Two Rivers to cut down the dam associated with Cucharas Reservoir, one of Two Rivers two junior reservoirs,” Justus said. “That order was based on public safety concerns as a result of the condition of the dam at Cucharas Reservoir. Two Rivers, in its defense against the engineer’s enforcement action alleged that it was unreasonable to demand that the Two Rivers comply with the dam cut-down order, and the associated costs, unless the engineers addressed what Two Rivers characterized as ‘wasteful and unreasonable water practices’ by Welton Water and its shareholders. Consistent with that allegation Two Rivers brought a separate set of claims against Welton. Although Two Rivers ultimately entered into a consent decree with the state and division engineers, which requires it to cut down the dam and complete certain other tasks, it continues its litigation against Welton Water and its shareholders.”

According to Justus, Two Rivers has several “creative claims” against Welton Water.

The first is “Two Rivers claim that certain traditional winter irrigation practices of the Welton shareholders fail to constitute beneficial use of water under Colorado law,” Justus said. “Because of the nature of this claim and its impact on their individual water rights, the court required that Two Rivers join Welton Water’s shareholders to this action. However, many ditch companies and their shareholders utilize the same types of irrigation practices that Welton Water’s shareholders do, so this should be of great interest for other people with winter water rights across the state of Colorado.”

Justus further explained, “Prevention of the form of winter irrigation practiced under the Welton would mean irrigation practices that are necessary for maintaining viability of certain lands for agricultural production would no longer be permitted. Importantly, the Winter Water Storage Program in Pueblo Reservoir, and the decree confirming the change of water rights necessary for the operation of that program would have been improper if Two Rivers’ theories are correct.”

CONCRETE STRUCTURES
The second is “Two Rivers claim that Welton’s diversion structure from the Huerfano River must be a permanent concrete structure in order to be a reasonable means of diversion under Colorado law,” Justus said. “If that was to become the new standard, it would mean that hundreds and possibly thousands of structures in the state no longer constitute reasonable diversion methods. Although the court has declined to dismiss this claim at this point in the litigation, Welton Water is confident that the law paired with the facts to be demonstrated at trial will show Two Rivers’ allegations to ultimately be groundless.”

Third is “Two Rivers claim that stream losses which occur in the division engineer’s administration of the waters of the Huerfano River in response to a ‘call’ petition by Welton Water pursuant to its senior water rights constitute unreasonable and actionable waste by Welton Water.”

In a briefing to the court, which has yet to be decided, Justus said, “Both Welton Water and the state and division engineers have argued that no such claim is cognizable under Colorado law. The court has yet to issue an order on the matter.”

The concept is simple according to Justus, “an appropriator like Welton Water and its shareholders cannot legally waste water over which it has no control, until water is diverted by Welton Water, the water remains within the exclusive administrative control and authority of the state and division engineers.”

Not only is Two Rivers seeking year-round water rights for its cannabis business, but it appears development projects might be in the works.

“In an investor update to its shareholders dated December 2016, Two Rivers says they are a vegetable company, but that document suggests that the entity is pivoting its near term focus to utilizing its water to grow hemp and for the development of infrastructure for the cannabis industry,” Justus said. With respect to its long-term focus, “that document suggests Two Rivers wants to take its existing water rights and use it in a development fashion, generating revenue through selling taps for development. Interestingly, Two Rivers water rights are not decreed for nonagricultural uses like domestic or municipal purposes. Nonetheless that document suggests Two Rivers plans to invest approximately $42 million in Cucharas Reservoir over the next two years.”

Justus noted that “eliminating the effect of Welton Water’s downstream senior rights will however potentially increase the yield of Two Rivers more junior rights associated with its reservoirs and therefore its return on its investments.” 
The case is ongoing, and as Two Rivers is suing each shareholder individually, Justus said it’s unclear when this will go to trial; however, he anticipates a July setting conference with the court, with a trial following 6 to 9 months after.

COUNTER CLAIM
Meanwhile, Welton Water has a counter-claim against Two Rivers arguing that out-of-priority depletions to the Cucharas and Huerfano Rivers by Two Rivers’ Cucharas Reservoir, in amounts approaching 3,000-acre-feet per year, are injuring the water rights of Welton and others. Welton anticipates that the unabated depletions will continue again this irrigation season.

Park County commissioners approve water lease

Upper South Platte Basin

From The Fairplay Flume (Lynda James):

The commissioners signed a resolution that approves the second amendment to the county’s water court application March 2.

The case filed in 2008 is to obtain a water rights decree for public works to use water for dust suppression and road construction.

The case also asks approval of the county’s water augmentation plan to replace water used by the department when a call on the river is in place…

The original water rights case was filed for six diversion points and plan of augmentation for 5.6 acre feet with an appropriation date of Dec. 2008…

The first water court amendment in 2013 added 12 points of diversion with an appropriation date of Oct. 2013, increased water from 5.66 to 15 acre feet and added places of storage.

The second amendment approved March 2 adds the five acre feet of water recently purchased from Lone Rock Water LLC as a source of augmentation water…

Until the county obtains water court approval for water rights and plan of augmentation, the county is using water under a Substitute Water Supply Plan approved by the State Engineer’s Office.

A SWSP allows one to use and augment water according to a written plan until the water rights application is actually approved by water court.

Ogallala Aquifer — different water law by state

Map sources:
Houston, Natalie. 2011. Hydrogeologist, Texas Water Science Center, U.S. Geological Survey. Personal communication, October 2011.
Houston, Natalie, Amanda Garcia, and Eric Strom. 2003. Selected Hydrogeologic Datasets for the Ogallala Aquifer, Texas. Open File Report 2003-296. August 2003.

From High Plains Public Radio (Susan Stover):

Texas manages groundwater with the Rule of Capture. The groundwater belongs to the landowner without a defined limit. It’s sometimes known as the Law of the Biggest Pump.

Colorado and Kansas water law is based on prior appropriation, known as First in Time, First in Right. A water right owner can pump their permitted amount if it doesn’t impair a more senior right – a water right that was established earlier in time. When there isn’t enough water to meet all needs, the owners of senior water rights have priority. The priority system works well for streams. When stream flow is low, it is generally clear which upstream, junior users must be cut off to protect the more senior water rights.

For groundwater, it is more complex to identify which water wells are impairing a more senior water well. Groundwater often provides a baseflow to streams; when heavy groundwater pumping lowers the water table so there is no longer a connection to the stream and stream flow declines, is that impairment?

Colorado state law dealt with such concerns by defining “designated groundwater basins,” those in which groundwater contributes little to stream flow. The Ogallala aquifer lies in designated groundwater basins. This allows more groundwater to be pumped, which lowers the water table, but with less risk of impairing surface water rights.

In Kansas, action is taken when a junior water right well’s pumping directly impairs a senior water right well, whether it uses groundwater or surface water. However, no action is taken if problems are due to regional groundwater declines. Like Colorado, Kansas allows the decline of the Ogallala aquifer to get the economic benefit from the water.

Management of the Ogallala aquifer is a balance between protecting existing water right holders and conserving water for the future. Attitudes change over time on what is a proper balance. Much water law encouraged development of the aquifer and protects current users. Is that balance shifting more toward conserving and extending this resource further into the future?

Senate confirms Zinke as Interior Secretary

Arizona Water News

The new Zinke team, including appointments to Bureau of Reclamation, will need to learn quickly about the complexities of Colorado River water law and the drought-induced woes facing Lake Mead

zinke-confirmation-photo

By a comfortable 68-31 margin, the U.S. Senate today confirmed President Trump’s nominee for Secretary of the Interior, Ryan Zinke.

The former Montana member of Congress will head a department that manages around 500 million acres of land and waterways in the United States.

Zinke’s department also includes the federal Bureau of Reclamation, the agency responsible for the system of dams and reservoirs on the Colorado River, the waterway that is integral to the livelihood of 40 million U.S. citizens living in the Southwest.

In a statement declaring his approval of the appointment, Arizona Sen. Jeff Flake said he looked forward to working with Zinke’s department, notably on behalf of Arizona’s Colorado River allotment.

“I was pleased to vote to…

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Valuing water rights

Prior appropriation example via Oregon.gov
Prior appropriation example via Oregon.gov

From The Colorado Real Estate Journal (Brett Bovee):

Water rights tied to properties can come in all sorts of flavors, but some of the most common are mutual ditch company shares, nontributary groundwater rights (sometimes referred to as Denver Basin rights) and units in a regional water storage project (such as Colorado-Big Thompson units). All of these types of water rights have different characteristics and associated value.

The most common way to value a water right is to document comparable sales. This is similar to methods employed in other real estate sectors. The difficulty with water rights is finding other sales, which transferred water rights that were indeed comparable to the subject water right of interest. You wouldn’t call a two-bedroom bungalow and a seven-bedroom estate comparable just because they are both houses in close proximity.

The same type of attribute information is important in valuing water rights. Aspects such as reliability, transferability and location (buyers) all factor into a water right’s value. When accurately comparable sales can be found, they provide the best indication of value. This is the most common valuation technique employed in areas with active water rights trading such as the Front Range.

Another method is looking at the potential income that could be generated from having the water supply that a water right provides. This often is applied to agricultural lands, by comparing the added value of being able to irrigate and grow higher-value crops, instead of dryland farming. For most other water uses, the analysis of income is complicated by other business, resource and manufacturing inputs.

A third method is looking at a replacement cost if the water right and the associated water supply were not available. For example, if a water user did not have ownership of a mutual ditch company share, what would the cost be to develop and utilize a new groundwater well? Another example is to consider the costs associated with a municipality acquiring and developing alternate water sources. The replacement-cost approach basically informs what the value of a water right might be by looking at the additional costs incurred by a buyer if they chose a different water right or source. In the residential real estate world, it would be like valuing a newly constructed house by looking at the cost of an old house plus the cost of the remodel and repairs.

‘As the Poudre Flows — Forest to Plains’ theme of Poudre River Forum

Scott Hummer, general manager of North Poudre Irrigation Company, talks about how his agency worked with Fort Collins Natural Areas and Colorado Parks and Wildlife to include a fish passage when the irrigation company replaced a diversion structure on the Poudre River that was destroyed by the 2013 floods. Work was completed [in February 2016]. (Pamela Johnson / Loveland Reporter-Herald)
Scott Hummer, general manager of North Poudre Irrigation Company, talks about how his agency worked with Fort Collins Natural Areas and Colorado Parks and Wildlife to include a fish passage when the irrigation company replaced a diversion structure on the Poudre River that was destroyed by the 2013 floods. Work was completed [in February 2016]. (Pamela Johnson / Loveland Reporter-Herald)

Here’s the release from Colorado State University (Jim Beers):

The Cache la Poudre River, which flows from the mountains through Fort Collins, Timnath and Windsor to the plains east of Greeley, is at the heart of countless activities: from irrigating crops and lawns to providing drinking water for more than 365,000 people and hosting numerous recreational activities.

Those with connections to and concerns for the Poudre River will gather on Friday, Feb. 3 for the fourth annual Poudre River Forum. After its first three years at Larimer County Fairgrounds, the forum is moving down the river to Greeley as a reminder that the Poudre River is important to all who benefit from it — from its headwaters to its confluence with the South Platte. This year’s forum — the theme is “As the Poudre Flows — Forest to Plains” — will be held from 8:30 a.m.-4:30 p.m. at the Island Grove Events Center, 501 N. 14th Ave., Greeley. Pre-registration is required for all participants.

Understanding the river, each other

Sponsored by the Poudre Runs Through It Study/Action Work Group, the forum serves as a community-wide gathering of people from agricultural, municipal, business, recreational and environmental backgrounds to learn about and discuss issues related to the Poudre River.

“The Poudre River Forum brings together those who use the river for agricultural and urban diversions and those who work to improve its ecological health. In the past those groups have not necessarily seen eye to eye,” said MaryLou Smith, PRTI facilitator. “Increasingly our participants are open to the idea that it takes collective vision and action to make the Poudre the world’s best example of a healthy, working river.”

Once again, this year’s event will be facilitated by the Colorado Water Institute at Colorado State University. “The Forum is a great opportunity for the communities connected by the Poudre River to come together to better understand the entire watershed, and each other,” said Reagan Waskom, director of CWI.

Forests and water quality/quantity

Laurie Huckaby with the U.S. Forest Service, will present “The last 1,000 years in the Poudre according to the trees,” to kick off the topic of how important the upper watershed is to water quantity and quality.

“Water quality and forests are inextricably linked,” said Joe Duda of the Colorado State Forest Service, who will join Huckaby as one of the presenters. “Forest conditions and insects, disease and fire all can have profound impacts on water flow and quality. Only healthy, resilient forests can continuously supply clean water.”

Global lessons for local success

“Finding the Balance: Managing Water for People and Nature” is the message of keynote speaker Brian Richter. Richter has been a global leader in water science and conservation for more than 25 years, and currently serves as chief scientist for the Global Water Program of The Nature Conservancy in Washington D.C. Richter’s ideas about the importance of recognizing the balance of working river/healthy river are the basis for which PRTI was initially formed. He has consulted on more than 120 water projects worldwide, and has served as a water advisor to some of the world’s largest corporations, investment banks, the United Nations, and has testified before Congress on multiple occasions. Richter co-authored,with Sandra Postel, the 2003 book Rivers for Life: Managing Water for People and Nature and in 2014 wrote Chasing Water: A Guide for Moving from Scarcity to Sustainability.

Change affects all sectors

An afternoon panel session will probe the impacts of change — positive and negative — along the Poudre River and how they have been similarly and differently addressed by agriculture, urban, and environmental sectors. They will discuss what anticipated future changes might these three sectors see as opportunities or incentives for mutually beneficial collaboration that could result in a healthier, working river?

“It has been said that the only thing that is constant is change,” said John Bartholow, retired ecologist from U.S. Geological Survey, and panel coordinator/moderator. “The question is, can we learn to adapt to those changes sure to come on the Poudre in ways that benefit agriculture, municipalities, and the environment?”

The panel will include Eric Reckentine, deputy director, City of Greeley Water and Sewer; John Sanderson, director of science, Nature Conservancy of Colorado; and Dale Trowbridge, general manager, New Cache la Poudre Irrigating Company.

Videos, displays and music too

The day-long forum also includes “River Snapshots” highlighting more than 15 projects undertaken by a variety of groups on the Poudre last year; “My How the Poudre Has Changed,” featuring historical 1970’s footage of the Poudre; updates from both the cities of Greeley and Fort Collins on current water programs; and over two dozen river-focused displays from community organizations and agencies. The day concludes with a social hour including food, beer and other beverages, and river-themed door prizes.

Registration is $50 and includes lunch. Scholarships for students and reduced rates are available. The deadline to register is Friday, Jan. 27 at http://prti.colostate.edu/forum_2017.shtml.

For more information, contact event coordinator Gailmarie Kimmel at PoudreRiverForum@gmail.com or 970-692-1443.